Jogger banned from Portsmouth takes case to Supreme Court

CONCORD — A jogger banned from Portsmouth for yelling profanities at officers and random civilians, while jogging city streets, is taking his case to the state’s highest court.

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By Elizabeth Dinan

seacoastonline.com

By Elizabeth Dinan

Posted Jan. 2, 2013 at 12:22 PM
Updated Jan 2, 2013 at 12:25 PM

By Elizabeth Dinan

Posted Jan. 2, 2013 at 12:22 PM
Updated Jan 2, 2013 at 12:25 PM

» Social News

CONCORD — A jogger banned from Portsmouth for yelling profanities at officers and random civilians, while jogging city streets, is taking his case to the state’s highest court.

Through attorney Stephanie Hausman, jogger Craig O’Brien, of Eliot, Maine, is asking the N.H. Supreme Court to decide whether his being banned from the city is constitutional. He’s also appealing a conviction for contempt of court by returning to the city to jog after the ban was ordered by Portsmouth Circuit Court Judge Sawako Gardner.

Hausman said Wednesday that she’s asking the Supreme Court to decide whether, and under what circumstances, a court can issue a geographical ban. She also noted the Supreme Court justices could issue a ruling without addressing O’Brien’s ban from Portsmouth because the court previously denied O’Brien’s appeal of that ban.

Assistant Attorney General Michael Lewis is scheduled to represent the state and referred inquires to a colleague who could not immediately be reached for comment Wednesday. Hausman said the state is arguing that O’Brien was already denied a request to appeal the ban and the court should only consider his appeal for the contempt of court conviction.

An assistant appellate defender, Hausman said she hopes the Supreme Court “decides the merits of the issue” regarding geographical bans by courts across the state. She said most case law surrounding the debate concerns probation violations by convicted defendants. In O’Brien’s case, she noted, he was barred from Portsmouth prior to any convictions.

The Supreme Court has ordered that there be no oral arguments related to the pending legal debate and both sides have a Jan. 10 deadline to file briefs outlining their positions.

In September 2009, while under a court order to stay out of Portsmouth as a result of then-pending disorderly conduct charges, O’Brien continued to jog through the city, often taunting patrol officers to arrest him, police said. It was then that officer Aaron Stacy accepted O’Brien’s challenge and arrested him on a charge of breaching bail conditions.

O’Brien unsuccessfully appealed the Portsmouth ban to District Court Judge Stephen Morrison, then at the Rockingham Superior Court, both times arguing the barment was unconstitutional.

In August 2010, O’Brien was twice convicted for disorderly conduct related to his jogging in Portsmouth. At the conclusion of a District Court trial, he was also taken into police custody for a felony count of witness tampering alleging he told a witness at the courthouse who was about to testify against him, “You are dead.”

Following a Superior Court trial on that charge, 11 jurors voted to convict O’Brien and one found him not guilty of witness tampering, which dismissed the case by hung jury.